The ECHR case of Khatsiyeva and others v. Russia (application no. 5108/02).

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EUROPEAN COURT OF HUMAN RIGHTS

028

17.1.2008

Press release issued by the Registrar

CHAMBER JUDGMENT
KHATSIYEVA AND OTHERS v. RUSSIA

The European Court of Human Rights has today notified in writing its Chamber judgment in the case of Khatsiyeva and Others v. Russia (application no. 5108/02).

The Court held unanimously that there had been:

· a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the killing of Khalid Khatsiyev and Kazbek Akiyev by Russian servicemen;

· a violation of Article 2 of the Convention concerning the authorities’ failure to carry out an adequate and effective investigation into their deaths;

· a violation of Article 13 (right to an effective remedy); and

· no failure to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).

Under Article 41 (just satisfaction), the Court awarded 20,000 euros (EUR) to the mothers of the deceased men and Mr Akiyev’s wife and EUR 10,000 to each of the other applicants in respect of non-pecuniary damage, and EUR 9,150, jointly, for costs and expenses. (The judgment is available only in English.)

1.  Principal facts

The case concerned the killing by Russian servicemen of the applicants’ relatives, Khalid Khatsiyev and Kazbek Akiyev, while they were working in a field in an area bordering on Chechnya in August 2000.

The applicants are seven Russian nationals who live in the village of Arshty in the Sunzhenskiy District of Ingushetia, bordering Chechnya.  They are: Layla Khatsiyeva and her children Nasip Khatsiyev and Abu-Rashid Khatsiyev; Khazman Akiyeva and her children Malikat Akiyeva and Zhanna Akiyeva; and, Zarema Khayauri, who was Kazbek Akiyev’s wife. They were born respectively in 1934, 1943, 1952, unknown, 1962, 1974 and 1976. Layla Khatsiyeva is the mother of Khalid Khatsiyev, born in 1969, and Khazman Akiyeva is the mother of Kazbek Akiyev, born in 1970. Khalid Khatsiyev and Kazbek Akiyev had two and four children respectively.

It is accepted that Khalid Khatsiyev and Kazbek Akiyev were killed by State agents as a result of the intentional use of lethal force against them. Otherwise the facts are disputed by the parties.

According to the applicants, who rely on eyewitness statements, on 6 August 2000 Khalid Khatsiyev and Kazbek Akiyev were cutting grass in the hills surrounding Arshty with four other men. One of the men from the group (Aslambek Imagamayev) stated that they spotted several helicopters bombing a forest area in Chechnya, about ten kilometres away from them. At around 1.00 or 1.30 p.m. they decided to go home for lunch, when two military helicopters appeared (which Aslambek Imagamayev identified as MI-24s) and started circling low above the field. One of the helicopters fired a machine-gun at a spot 40-50 metres away from the men. They ran to a car, a white Niva, and drove away towards Arshty. The helicopters then reappeared above the car, hovering at low altitude. The men stopped the vehicle and ran for cover in different directions. The helicopters launched non-guided missiles and fired machine guns at the car. One of the helicopters fired a missile at the place where Khalid Khatsiyev and Kazbek Akiyev were hiding. They were both killed and another man was wounded.

The attack and the deaths were reported by human rights NGOs and the Russian mass-media in August 2000.

According to the Government, residents of Ingushetia had been notified, through the television and press, of the risk of being near the Chechen border and warned that, when in the area of a counter-terrorist operation, they should stop moving, mark themselves with a piece of white cloth and wait for servicemen to do an identity check.

The Government submitted that, on 6 August 2000, the authorities carried out a special operation to find the camp used by 250 illegal fighters eight kilometres south of the village of Arshty. According to the Government, “in the materials of the preliminary investigation file there was no information” as to whether the residents of Arshty had been warned in advance about the operation, or whether the military personnel involved had been instructed to avoid civilian casualties. At about 1 p.m., pilots in MI-24 helicopters saw a Niva car and a group of at least five men with light machine-guns. They received orders from the command centre to fire warning shots at a spot 50m away from the car. The men drove away, instead of staying where they were and waiting for an identity check. The pilots received orders to fire a second round of warning shots, but the car continued moving. They were subsequently ordered to fire at the car, killing Khalid Khatsiyev and Kazbek Akiyev.

An investigation was opened the day of the attack, the scene was inspected, preliminary medical examinations were made of the corpses and eyewitnesses were questioned.

The investigation was suspended on 30 October and 30 December 2000, for failure to identify those responsible.

On 15 December 2001 the criminal proceedings were discontinued concerning the person giving the order to attack, on the ground that the order to use lethal force had been justified. S/he was never identified. The identity of the pilots was established more than a year later.

Despite their numerous requests, none of the applicants was ever granted victim status or access to the case file.

Overall the criminal proceedings concerning the deaths of Khalid Khatsiyev and Kazbek Akiyev were adjourned and reopened at least five times. In April 2003 the proceedings were discontinued on the ground that there was no evidence of any crime having been committed.

2.  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 25 September 2001 and declared admissible on 23 October 2006.

Judgment was given by a Chamber of seven judges, composed as follows:

Peer Lorenzen (Danish), President,
Snejana Botoucharova (Bulgarian),
Karel Jungwiert (Czech),
Volodymyr Butkevych (Ukrainian),
Margarita Tsatsa-Nikolovska (citizen of “the former Yugoslav Republic of Macedonia”),
Rait Maruste (Estonian),
Anatoli Kovler (Russian), judges,

and also Claudia Westerdiek, Section Registrar.

3.  Summary of the judgment

Complaints

The applicants complained in particular that their relatives were killed by Russian servicemen and that there was no effective investigation into their deaths. They relied on Articles 2 (right to life), 6 § 1 (right to a fair hearing), 8 (right to respect for private and family life) and 13 (right to an effective remedy).

Decision of the Court

Article 2

Concerning the killing of Khalid Khatsiyev and Kazbek Akiyev

The Court noted that it was in dispute between the parties whether the six men who came under attack had been armed. The applicants insisted that it had been obvious that they were unarmed civilians cutting grass. The Government’s position was less clear. They appeared to accept that the applicants’ relatives were unarmed local residents, but insisted that they had been attacked because of their own negligence, because they had failed to mark themselves as civilians. However the Government also stated that the six men had been armed with light machine-guns and could therefore have belonged to a group of illegal fighters.

In the absence of any evidence other than statements from the pilots and a military officer, the Court doubted whether the men were armed when they were attacked, given in particular that no firearms had ever been found at the scene of the incident and that there was no evidence that the victims had fired at the helicopter or endangered the lives of the pilots.

The Court was aware of the difficult situation in Chechnya at that time, which called for exceptional measures on the part of Russia to suppress the illegal armed insurgency. However, that did not, by itself, justify the use of lethal force against the six men.

The pilots acted on their superiors’ order which was binding on them. However the pilots were not asked to provide any information as to visibility in the area, whether the area was populated, whether they had or could have come under an armed attack, whether the men had tried to escape and whether the situation required any urgent measures to be taken by the pilots, or any other details. Neither was there any evidence to suggest that the authorities in command had established the identity of the men before giving the order to fire on them or even that they had attempted to do so. The Court was therefore not persuaded that the killing of Khalid Khatsiyev and Kazbek Akiyev, even assuming that they were armed, constituted a use of force which was no more than absolutely necessary.

The Court found no justification for the use of lethal force in the applicants’ case, given that the authorities had never warned the residents of Arshty about the operation of 6 August 2000 and that it was highly doubtful that the residents of Ingushetia, and in particular Arshty, were ever apprised of the conduct required when confronted with federal servicemen.

The Court therefore found that there had been a violation of Article 2 concerning the killing of the applicants’ relatives.

Concerning the alleged ineffectiveness of the investigation

The Court noted that the investigation was started on the date of the attack and that some initial investigative actions were taken immediately. However the investigation soon appeared to have become protracted and plagued with inexplicable shortcomings and delays in taking the most trivial steps. In particular, it did not appear that any ballistic tests were ever performed. Moreover, no autopsy or any further medical forensic examination of the corpses was ever carried out, apart from the initial medical examination on 6 August 2000.

It did not appear that at the early stage of the investigation any meaningful efforts were made to establish the identity of those who had given the order to attack or those who had carried out the order. The identity of those ordering the attack did not appear to have been established at all. In particular, the decision of 15 December 2001 did not indicate whether the identity of the official concerned had been established or make any assessment of the order to attack. No further attempts to analyse the order were ever made.

The Court further observed that none of the applicants was ever granted victim status, which would have afforded them minimum guarantees in the criminal proceedings. They were not given adequate information about the developments in the investigation or access to the case file. The Court considered that the applicants were, in fact, excluded from the criminal proceedings and were unable to have their legitimate interests upheld.

Finally, between August 2000 and April 2003 the investigation was adjourned and reopened at least five times. Its ineffectiveness and the investigators’ failure to take practical measures aimed at resolving the crime and to comply with prosecutors’ orders were even acknowledged by senior prosecutors. The Court also noted numerous transfers of the investigation file from one investigating authority to another without any reasonable explanations being given.

The Court concluded that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of Khalid Khatsiyev and Kazbek Akiyev in violation of Article 2.

Article 13

In circumstances where, as in the applicants’ case, the criminal investigation into the deaths in question was ineffective and the effectiveness of any other remedy that might have existed, including the civil remedies, was consequently undermined, there had been a violation of Article 13.

Article 38 § 1 (a)

Although some documents were not submitted by the Government on the ground that their disclosure might be harmful to the interests of the security of the Russian Federation and to those of the participants in the criminal proceedings, or that they “were irrelevant to the investigation”, the Court noted that the Russian Government submitted a significant part of the case file and that that had considerably facilitated the examination of the case by the Court. Overall, the Court did not consider that the Government’s conduct had been such as to obstruct the conduct of an effective investigation in the case. There had therefore been no failure on the part of the Russian Government to comply with Article 38 § 1 (a).

Articles 6 and 8

The Court did not consider it necessary to examine the applicants’ complaints under Articles 6 and 8.